Within any discipline there are said to be lumpers and splitters, hedgehogs and foxes. My inclinations run to lumping, but in this essay I aim to do some splitting. Specifically, I seek to distinguish among three distinct forms of legal pragmatism. Although my sympathy for one of the strands will likely become clear, my purpose is mainly to identify and distinguish them, not to assess their relative virtues and vices.
In his provocative new book, A Realistic Theory of Law, Brian Tamanaha offers a variety of insightful analyses and conclusions that may shake up analytical jurisprudence for years to come. In the course of a relatively short and highly accessible work, Tamanaha challenges conceptual theories of law and conventional understandings of international law, clarifies important aspects of legal pluralism, and provides a novel, genealogical approach to thinking about the nature…
As you probably noticed, my title is ambiguous—deliberately so, because my purpose here is twofold: to teach legal theorists something of the pragmatist tradition in philosophy, its history, its character, and its content; and to suggest some of the ways in which the intellectual resources of that tradition can enhance our understanding of the law. And as you probably also noticed, my opening quotation is two-sided—again, deliberately so, because I…
In contemporary jurisprudential writing, there is no lack of attention to method. Although I have participated in this activity, I have reservations about it, partly because it tends to be narcissistic, but more because it can encourage an unwelcome form of intellectual-boundary policing. Despite these reservations, I will offer in this essay some reflections on method in jurisprudence, reflections stirred by Professor Tamanaha’s impressive new book, A Realistic Theory of…
In A Realistic Theory of Law, Brian Tamanaha rejects the claim that universal legal principles exist, and its variant that essential features of law applicable to all societies can be identified. He argues that we should define law in accordance with our society’s ordinary usage of the term and analyze law in other societies on the basis of the practices they follow on subjects that fall within the boundaries of…
One of the more important insights in H.L.A.Hart’s The Concept of Law comes on the very first pages of the book, where Hart insightfully observes that the typical appeal for a definition of “law” is not really a search for a definition at all, but is instead a mask for any of a number of somewhat different and less definitional questions. We are puzzled about some aspect of law, Hart…
Law involves institutions rooted in the history of a society that evolve in relation to surrounding social, psychological, cultural, economic, political, technological, and ecological influences. Law must be understood naturalistically, historically, and holistically. In my usage, naturalism views humans as social animals with natural traits and requirements, historicism presents law as historical manifestations that change over time, and holism sees law within social surroundings. These insights inform my perspective in…
In an era of increased concern over presidential power, congressional oversight of the executive branch constitutes a substantial—but underappreciated—means of influencing agency decision-making. Scholars too often have overlooked it, and Congress is sub-optimally designed for its provision, but oversight has a significant impact on agency behavior. This Article provides a corrective. It presents the legal mechanisms that give oversight hearings their force and situates these hearings in their historical and…
This Article challenges the longstanding assumption that sports should be segregated by sex. Imposing sex segregation on sports is problematic for many reasons. Sex segregation reflects and reinforces a binary view of both sex and gender unsupported by science. It communicates that women are physically unable to compete against men, even though research indicates considerable variation among individual athletes and different sports, and further reveals that attributes other than sex…
Campus Box 1120, One Brookings Drive, St. Louis, MO 63130